On the heels of modest Proposition 65 reform legislation this past year, California’s Office of Environmental Health Hazard Assessment (OEHHA) has floated a “pre-regulatory proposal” of possible changes to the Proposition 65 implementing regulations that would impose significantly increased burdens on retailers, manufacturers and distributors if they were to take effect as written. The draft significantly expands the requirements for warnings, both the methods of transmission and the content of the warning. This includes a requirement to add the international health hazard symbol for toxic hazards that is utilized under OSHA and international occupational safety regimes, as well as the name of the chemical if it is one of a dozen listed chemicals. It would also change the essential text of the “safe harbor” language to state that the product “will expose you to a chemical” from the current “product contains a chemical” language.
Furthermore, it would establish a requirement that any business that provides a Proposition 65 warning must provide OEHHA a list of information, including contact information for the person providing the warning and the manufacturer, specific products (including barcodes) for which the warning applies, chemicals for which the warning is provided, exposure pathways, anticipated level of human exposure, and actions a person could take to minimize exposure. OEHAA intends to develop a website to make this information available to the public. Considering the number of products with Proposition 65 warnings, this element is an enormous scope of work and an implementation nightmare. It is also a fundamental change from the original concept that the warning is provided because the product contains a listed chemical, but a business can avoid providing the warning if it demonstrates that exposure will be within acceptable risk levels. This approach would, instead, require an exposure assessment be performed for each and every product that required a warning.
There is also a narrow “opportunity to cure” for small businesses but the restrictions on when a business could avail itself of this defense are such that few, if any, would qualify. The draft and information about the process are available on OEHHA’s website at: http://oehha.ca.gov/prop65/warnings/030714warningworkshop.html
OEHHA makes it clear that the current draft is floated for discussion and if any formal regulatory amendments are proposed, they may change substantially from this draft. However, some of the concepts in the discussion draft present a highly burdensome and virtually unworkable approach to a law that already has been roundly criticized for the burden it imposes on businesses.
OEHHA is holding a public workshop in Sacramento on April 14, 2014 to take comments on their discussion draft, with an eye towards a formal regulatory rulemaking proposal in summer of 2014. The regulated community should be strongly encouraged to participate in this workshop or submit written comments by the deadline of May 14, 2014. For more information, contact Cooper, White & Cooper LLP environmental attorney John Epperson at firstname.lastname@example.org